Liberty Is Not Suicide

Over at Defending Dandelions, “nidefatt” isn’t happy with libertarians like myself and Scott Greenfield. (I don’t think Scott’s ever identified himself as a libertarian, but he sometimes sounds like one.) In an earlier post, he commented on Scott’s constitution-is-not-a-suicide-pact post, and more recently he responded to my own response to Scott’s post:

[…] The ideas are similar.  Windy is no Greenfield, and steps back from his rhetoric and invective.  But like Greenfield, he is of the opinion that the Constitution and the Bill of Rights mean what he thinks they mean.  Civil Rights are right there, in black and white, and are meant to be applied as he has come to understand them.

Well, I certainly want the Constitution and the Bill of Rights to mean what they seem to mean to me. I place a pretty high value on individual liberty, and the Bill of Rights is written in a strong declarative tone. I like the sound of it. And I’d like to have very strong versions of all those rights it talks about.

Nevertheless, I normally try to avoid anything resembling Constitutional interpretation in my blog posts because I realize there’s an awful lot of history bound up in the interpretation of that document, and I’m far from a Constitutional scholar. In this case, however, it was hard not to mention the Constitution since I wanted to discuss why I thought the argument behind “the Constitution is not a suicide pact” is wrong.

The Constitution is a remarkable document, and like other remarkable documents, it apparently supports everyone.  What Greenfield and Windy see as being the intention of the “founders” or perhaps, if they’re thinking more accurately, the populations of the colonies/states that ratified the document, is but one view. Their view of the Constitution is one of the more attractive because it requires little thought, there simply are forbidden things and that is that.  The government can go this far and no further.  Keeping the government on its side of the line is one of our eternal duties.

It’s worse than he thinks. The hard-core libertarian view is not merely that the government is forbidden from doing certain things, but rather that the government has no lawful authority to do anything that it is not explicitly authorized to do by the constitution.

For example, some would-be censors have argued that the founders could not have envisioned such a powerful propaganda tool as television when they wrote the Bill of Rights, and surely if they had known about television, they would not given it the broad protection that the printing press receives in the First Amendment.

The libertarian response is that the Constitution describes a limited government, and since the authors could not have envisioned television, they could not possibly have intended to give the federal government power over television. Many libertarians would like to see the federal government limited only to a very narrowly defined set of enumerated powers.

I grow tired of this view.  I see it everywhere, and it is as intellectually dishonest as it is hypocritical. Of course the Constitution isn’t eternal.


What Greenfield and Windy and their ilk trumpet so blindly as the meaning of the First Amendment was a concept shaped largely by men in the beginning of the twentieth century, men like Holmes and Hand and other men who had more sense than just about anyone alive today as far as I can tell.

We are sovereign.  Not the Constitution.  We are.  The Constitution has been and will always be the plaything of the powerful.  If the best argument you can come up with is “well the Constitution said so” or “the founders thought so” then you will lose the war of ideas.

“The Constitution said so” is hardly my best argument.

More ironically, you will have attempted to thwart authoritarians by relying on authority, pure and simple.  If your ideals have as much value as you credit them with having, then take the time to learn about that value and how to express it. Otherwise, your simple, mindless repetition of this that or the other amendment and your waving of the shriveled ancient parchment you so love will not save you from the horde of children growing up today who think that document foolish and dated.

It has not escaped my attention that the Constitution is not a libertarian document. (Tolerance for slavery was the first clue.) Although it was influenced by some libertarian ideas, it does not purport to create a libertarian government that maximizes individual liberty. And if it were up to me, I would forbid the government from doing many things, regardless of whether or not the Constitution would permit them. My view of what the government should or should not be doing does not depend on the Constitution or its interpretation by any court.

But where the language of the Constitution does comport with my own preferences for government, I have a tendency to invoke it for support. Consequently, the fact that “nidefatt” thinks I was making a largely Constitutional argument is probably due to a lack of clear writing on my part.

To my mind, the main thrust of my post was to undermine Justice Jackson’s argument that sometimes liberty must be sacrificed to preserve order:

The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act. How many countries have died because they allowed their citizens to have too much due process? How many nations have fallen because they allowed their citizens to speak up too much?

Granted, there are governments that arguably fell because of a failure to crack down hard enough on their people. Off the top of my head, there’s tsarist Russia, communist Czechoslovakia, apartheid South Africa, and the Arab Spring nations — Tunisia, Egypt, Libya, and Yemen. Corrupt authoritarian regimes, every one. In some cases, the new governments that arose afterwards weren’t any better, but the destruction of the old governments was no great loss.

Shortly after 9/11, Attorney General John Ashcroft lashed out at people who objected to the Patriot Act and other expansions of the security state by accusing them of alarming people with “phantoms of lost liberty.” To my mind, Justice Jackson was alarming people with phantoms of anarchy and chaos. Free speech has never destroyed a country worth saving.

More to the point (although one I did not make explicitly) Jackson was on the losing side of the decision. The Supreme Court had rejected his views, and in the ensuing decades the United States adopted exactly the kind of broad interpretation of free speech that Jackson was worried about. And yet rabble rousers did not stir the populace to revolution or civil war. Jackson’s moral panic over agitators was proven wrong by history.

The worst it ever got was about a decade later, when African-American civil rights leaders (among others) stirred up protests that occasionally erupted into violence — often as much by the police as by the protesters — and even then American civilization was never in danger. And note how the civil rights movement ended: The rest of America realized that the civil rights leaders — the people making exactly the kind of disruptive speeches Jackson wanted to silence — had been right all along, and many of their ideas became the dominant ethos of our society.

And sixty-some years after Jackson’s dissent, we are the most powerful and influential nation in the world. There are many reasons for that, but I argued that our embrace of liberty, though tenuous at times, was no small part of the cause:

Not only is respecting individual civil liberties not a suicidal act, it’s arguably a source of considerable strength. A tradition of freedom makes a nation difficult to conquer, the economic benefits of free markets make strong defense affordable, and the practice of open debate makes a nation flexible to advantageous changes of policy.

That’s a big part of my argument right there. Freedom on the broadest possible terms is a good policy that makes our nation strong and improves all our lives.

But freedom is also valuable in itself. From time to time, I call myself a libertarian, and I mean it in the sense that Nick Gillespie and Matt Welch define it in Declaration of Independents:

At it’s root, libertarianism is about a default preference for the freedom to peaceably pursue happiness as we define it without interference from government. It’s the belief that the burden of proof should rest not on the individual who wants to sell lemonade, paint his or her house purple, hop on an airplane, ingest intoxicants, or marry someone from the same sex (though preferably not in that order) but on any government seeking to thwart or control such victimless activities. Like the magazine we write for, we agitate for the aspirational goal of “free minds and free markets,” celebrating a world of expanding choice — in lifestyles, identities, goods, work arrangements, and more — and exploring the institutions, policies, and attitudes necessary for maximizing their proliferation. We are happy warriors against busybodies, elites, and gatekeepers who insist on dictating how other people should live their lives. Like John Stuart Mill, we’re big on “experiments in living.” Within the broadest possible parameters, we believe that you should be able to think what you want, live where you want, trade for what you want, eat what you want, smoke what you want, and wed whom you want. You should also be willing to shoulder the responsibilities entailed by your actions. Those general guidelines don’t explain everything, and they certainly don’t mean that there aren’t hard choices to make, but as basic principles, they go a hell of a long way to creating a world that is tolerant, free, prosperous, vibrant, and interesting.

That’s what I want more than anything, for all of us to live in that kind of world, and I hope it’s what you want too. Creating that world is mostly up to us, but in order to succeed, we have to have a government that is compatible with that vision. At the risk of quoting from another “shriveled ancient parchment” I think Jefferson nails it pretty well in the original Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…

In other words, freedom is not suicidal to a nation. Freedom is the whole point of having nations. The only reason for permitting governments of any kind is to help us create a world that is “tolerant, free, prosperous, vibrant, and interesting.”

7 Responses to Liberty Is Not Suicide

  1. Since I started blawging, I’ve had to deal with people with progressive ldeals who get very angry with me for not promoting what they think I should. After all, I’m a criminal defense lawyer, and therefore I ought to be a stalwart supporter.

    When I cross their line, they call me mean names. There is nothing worse than a traitor to the cause to an angry young man. They are resolute in the certainty of their politics. There are worse things one can be, so I try not to be overly critical of the zealous but misguided views of angry young men.

    Nidefatt’s view is that certain issues are so overwhelmingly important that they take precedence over liberty, and they should. I understand his view, as I shared it for a long time. What finally cured me of it was the Supreme Court’s Heller decision, where I was forced to come to grips with the 2d Amendment. I am not a fan of guns, but I cannot demand fealty to the amendments I like while calling for the demise of the one I don’t. I chose not to be a hypocrite, despite my feelings toward guns.

    The flaw in Nidefatt’s rationalization is that he fails to recognize the problem with the Tyranny of the Majority. He assumes, as do all righteous people, that his views are shared by most people, and so they, democracy, trump all else. Whether his views are the majority is unclear, but if the majority’s views trump the Constitution, we would have no rights at all. The majority tends to be strong on order, short on law, and really doesn’t give a rat’s ass about liberty or freedom, and really hates the accused, who are by definition all criminals anyway.

    Perhaps in time Nidefatt will come to realize the virtue of the Constitution over whatever transient interests are the sacred cows of the day, as views shift and rights disappear. I’ve seen plenty of shifts in my time, and given time, he may too. Maybe then he won’t be so angry at those of us who defend the Constitution.

    • I read quite a different meaning into Nidefatt’s post. I didn’t think he was arguing that the Tyranny of the Majority should trump the Constitution, only that it would. Regardless of what the Constitution says, or what any of us think it means, as a practical matter, it only really has the meaning that we as a society are willing to give it, and therefore my appeal to the meaning of the First Amendment was naive at best.

      It’s similar to arguing that black people should be allowed to attend traditionally all-white schools because the Civil Rights Act says so. The weakness is that Congress could repeal the Act in a busy afternoon, so a more comprehensive argument needs to make the point that the Civil Rights Act is a good idea.

      I felt Nidefatt was telling me that any particular interpretation of the constitution could be overturned or ignored, so it wasn’t enough just to appeal to the authority of the Bill of Rights as I interpreted it. I also had to argue why my interpretation was a good idea if I wanted that interpretation to have some power. And that’s what I tried to do in this post.

  2. You could be right. One of the problems I had reading nidefatt’s post was that he’s long on rhetoric and short on substance. He doesn’t tend to tie his polemic to a specific concept, but kinda runs with it, then runs some more. I got bored pretty quickly.

  3. “The Constitution is not a suicide pact because respecting individual civil liberties is not a suicidal act.”

    This is a powerful sentence. It rings true in a few different contexts. Free speech scrubs out disdainful ideas better than speech codes. Free traders don’t go to war with each other. No terrorist commits violence to avenge the green card and work VISA issued to his uncle. Witnesses don’t avoid talking with police they trust.

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